punished, would be as silly as to leave the door unbarred, because the thief might be hanged. If the comparison be meant to extend no further than this, it is useless, since it merely illustrates a fictitious case which does not admit of doubt; if it be meant to extend further, its application is unjust, since the danger to be apprehended from an open press is opposed, not to security, but to the danger to be dreaded from making power the standard of truth. The advocate for an open press assigns for his reason, not that an offender may be afterwards punished, but that he apprehends greater mischief from the restriction than from the abuse of the liberty each side of the alternative presents its inconveniences, and the only question is, which is the more tolerable, to see no truth but through the the suspicious medium of power, or to risk the disorders and scepticism which may flow from a press unfettered by previous restriction.

:

That a free press is the surest protection against the inroads of arbitrary power, is a position which may almost be regarded as a political axiom. Under a government where communication is shut out, the individual suffers in silence; innovations are securely practised upon what remains of his liberty; his knowledge is confined to his own grievances; and to proclaim them aloud, and singly and unassisted to demand redress, is too dangerous a measure for the stoutest resolution.

By means of the press every movement of power

is announced to the community; the effects of every measure scrutinized by the united talents of the whole; every individual learns the extent of every public grievance, and is animated in his resistance to the oppression by the confidence which the support of numbers never fails to inspire.

The security thus afforded is valuable in proportion to the value placed upon liberty itself, and is an advantage singly sufficient to outweigh the opposite evils, were they more real than experience has proved them to be*.

An important distinction relating to this topic still remains. There is a wide difference between an open press, that is, a press not subject to the previous control of a licenser, and a free press; and yet it is remarkable, that these are treated† by a very eminent writer upon our constitution, as identical. Does the removal of previous restraint necessarily and essentially constitute a free press ? May not the pains and penalties inflicted for that which has been published be so unwarrantably severe as to prevent future publications ?-To take an extreme case:-Suppose a government claiming no previous right of restraint, to punish with loss of life or limb for publications abstractedly innocent, could the press in that country be deemed free? If not, then it is clear, that something more

* It is now upwards of a century since the press of this country was finally rescued from the hands of a licenser,

† Sir W. Blackstone's Com, vol. 4, 151,

than the mere absence of previous restraint is essential to the liberty of the press.

This further requisite consists in laying down plain intelligible rules, adapted to the exigencies and convenience of society; without such guides, the most perplexing uncertainty must prevail, and it may fairly be questioned, whether the alternative of a licenser, whose office, however odious, at all events secures from punishment, by preventing the publication of that which he deems offensive, be not preferable to the permission to publish, where the effect of publishing is hazardous and uncertain.

Civil liberty has been well defined*, to consist in "The not being restrained by any law but what "conduces, in a greater degree, to the public good.' Were a set of laws, therefore, to be constructed upon this foundation, for regulating the extent of the privilege of communication, so as to consist with the fullest enjoyment of civil liberty, their opera, tion would produce the greatest aggregate of good; so that were a greater latitude allowed, the mischief would outweigh the advantage resulting from freer communication: were the privilege more contracted, the additional security would not compensate for the increase of litigation, and the partial loss of the benefits afforded by free discussion; or in either case, an inconvenience would accrue from

* Paley's Philosophy, vol. 3. p. 164,

such

relinquishing a plain well-defined rule for one uncertain and precarious. To determine, therefore, with precision, the limits of verbal and written communication, is a problem easy of enunciation, but exceedingly complicated in its solution: it involves the consideration of the habits, manners, and even fancies and prejudices of the people for whose government it is intended, and may e may require alterations corresponding with the changes effected in the state of society. Before mercantile convenience, for instance, had created what is termed credit, an imputation of insolvency could produce little prejudice, yet after the establishment of commerce, it might largely contribute to its own verification; and it would not be difficult to cite terms of reproach, which in one age would exasperate and provoke to acts of violence, but in another, would meet with disregard and indifference.

TO INQUIRE WHAT LIMITS HAVE BEEN PRESCRIBED BY THE LAW OF ENGLAND TO THE COMMUNICATION OF IDEAS OF ANY DESCRIPTION, WHETHER OF FACTS OR OF OPINIONS, WHICH MAY AFFECT THE CHARACTERS OF INDIVIDUALS, OR THE INTERESTS OF THE PUBLIC, AND THE MODE BY WHICH ITS REGULATIONS ARE TO BE ENFORCED, IS THE OBJECT OF THE PRESENT

TREATISE.

In pursuing this investigation, the following method is proposed to be observed.

1st. To reduce the subject into the most simple

divisions of which it is capable, with reference to the general principles and distinctions recognised by the Law of England.

And 2dly. To endeavour, from the particular cases which range themselves within each of such divisions, to extract such principles and positions as may serve to define and ascertain the limits and boundaries of this branch of the law.

In the first place it is necessary, for the sake of clearness, to advert to the well-known distinction between private and public wrongs: in the former case, the object of the law is to compel a reparation to the injured individual, for a specific loss; of the latter, to prevent, by dread of punishment, an attempt to produce disorder in society. The foundation, therefore, of proceeding in the two cases, is perfectly distinct; and the means used by the law for the attainment of such different objects are, as might be expected, dissimilar.

In some respects, it is true, the corresponding incidents are nearly related; but upon the whole, a separate consideration, even of these, appears preferable, particularly since repetition may be avoided by reference, and the advantage derived from viewing the two branches in their mutual bearings may be attained by subsequent comparison.

The subject will therefore be considered,

1st. In its relation to individuals.

2dly. In its relation to the interests of the public.